Beruflich Dokumente
Kultur Dokumente
PUBLISH
MAR 7 2001
PATRICK FISHER
TENTH CIRCUIT
Clerk
No. 99-4245
family. On appeal, Mr. Magleby argues that the evidence of his guilt regarding
three of these four counts was insufficient to support his conviction. He also
argues that the district court submitted two erroneous instructions to the jury.
Finally, he argues that the district court erred by admitting evidence which he
argues was highly prejudicial and of little or no probative value. We exercise
jurisdiction pursuant to 28 U.S.C. 1291 and affirm.
I. Background
On the evening of September 6, 1996, the defendant, Michael Brad
Magleby, hosted a barbecue at his home. His friends Andy Whitlock, Steve
Meguerditchian, Justin Merriam, Mr. Merriams date Liz Cannon, and fifteenyear-old L.M. were in attendance. During the course of the barbecue, Mr.
Magleby and his guests drank heavily. In addition to drinking that evening, Mr.
Magleby took prescription pain pills. On this occasion, as on other occasions,
Mr. Magleby joined his friends in expressing prejudicial views of AfricanAmericans. They told racist jokes, used racial slurs, and listened to racist CDs.
The group accessed internet sites with racist jokes and other internet hate sites on
Mr. Maglebys computer.
At some point during the evening, Mr. Magleby began talking about some
Tongans, alleged gang members, who lived in his neighborhood. He later
-2-
testified that he did not like having the Tongans in his neighborhood. L.M. also
testified that the Tongans had previously assaulted Mr. Magleby. During the
course of this conversation, Mr. Magleby and L.M. began talking about burning a
cross at the Tongans house. Mr. Merriam taunted Mr. Magleby, telling him that
he did not dare burn a cross there. Mr. Merriam told Mr. Magleby that if he were
really going to do it, he should stop talking about it and just do it.
At about 1:00 AM, after several hours of drinking, Mr. Magleby and L.M.
gathered wood from Mr. Maglebys garage to build a cross. In his kitchen, Mr.
Magleby used a power drill to drill holes in the wood and fastened the pieces of
wood together with screws. He then applied black spray-paint to make the cross
more flammable. After the cross was ready, Mr. Magleby and L.M. carried it to
Mr. Maglebys jeep and drove off with Mr. Magleby behind the wheel. They
stopped at a gas station to fill a beer bottle with gasoline which they planned to
pour over the cross to ensure that it would burn. They then set out for the
Tongans house.
When they arrived at the Tongans house at about 2:30 AM, Mr. Magleby
got out of his jeep and started taking the cross out. Before he took the cross out
of the jeep, L.M. noticed several men outside. Because there were men outside
the house, Mr. Magleby decided that it wouldnt be too wise to burn the cross at
that house. Tr. at 800. He got back in the jeep.
-3-
At that point, Mr. Magleby told L.M. that they still had to the burn the
cross because their friends would ridicule them if they did not. The parties
dispute what happened next. Mr. Magleby argues that L.M. told him that he knew
where a crackhead lived and that they could burn the cross at his house. The
government argues that L.M. told him that he knew where a black man lived and
that they could burn the cross there. The parties agree that Mr. Magleby knew
nothing about the Henrys prior to that moment. Mr. Magleby and L.M. then drove
to the house where Ron and Robyn Henry and their eleven-year-old son lived.
The Henrys are an interracial family: Ron is African-American and Robyn is
white.
When Mr. Magleby and L.M. arrived at the Henrys home, Mr. Magleby
took the cross out of the jeep, placed it in the Henrys yard, poured gasoline on it,
and then ignited it. The two immediately returned to Mr. Maglebys house.
After returning to Mr. Maglebys house, Mr. Magleby was excited and
bragged to his friends about what he had done. Mr. Merriam became angry when
he learned where Mr. Magleby and L.M. had burned the cross because the Henrys
lived in his neighborhood and his father knew them. Mr. Magleby argues that it
was at this point that he first discovered that Ron Henry was African-American.
Mr. Magleby was arrested and indicted on charges stemming from burning
the cross at the Henrys home. On December 10, 1999, Mr. Magleby was
-4-
II. Discussion
Mr. Magleby argues that the district court submitted two erroneous
instructions to the jury. He also argues that the district court erred in denying his
motion for judgment of acquittal because the evidence was insufficient to support
his convictions under 18 U.S.C. 241, 18 U.S.C. 844(h)(1), and 42 U.S.C.
3631(a). Finally, he argues that the district court erred in admitting several pieces
of evidence which, he argues, were highly prejudicial and of little or no probative
value.
-5-
169 F.3d 1299, 1302-03 (10th Cir. 1999). 1 In reviewing jury instructions for
error, we review the instructions as a whole to determine whether the jury may
have been misled, upholding the judgment in absence of substantial doubt that the
jury was fairly guided. Id. at 1303 (internal quotation marks omitted).
1. Jury Instruction No. 30
Mr. Magleby argues that the district court erred in submitting Jury
Instruction No. 30 to the jury because it misstates the relevant legal standard of
42 U.S.C. 3631(a). To establish a violation of 42 U.S.C. 3631(a), the
Government must prove beyond a reasonable doubt that the defendant acted with
the specific intent to injure, intimidate or interfere with the victim[s] because of
[their] race and because of the victim[s] occupation of [their] home. United
States v. Whitney, 229 F.3d 1296, 1303 (10th Cir. 2000) (internal quotation marks
omitted).
Mr. Magleby concedes that Jury Instruction No. 27 correctly states the third
element of a 3631(a) violation: [t]he defendant engaged in conduct described
Mr. Magleby did not object to either Jury Instruction No. 30 or Jury
Instruction No. 22. He asserts, however, that proposing an alternative to Jury
Instruction No. 30 should be considered an objection to that instruction. This
court has previously held, however, that proposing an alternate jury instruction is
not an objection that put the district court clearly on notice as to the asserted
inadequacy of the jury instruction. Fabiano, 169 F.3d at 1303 (10th Cir. 1999)
(internal quotation marks omitted). We therefore review both jury instructions for
plain error.
1
-6-
because of the race or color of one or both Ron Henry or Robyn Henry and
because one or both Ron Henry and Robyn Henry were attempting to occupy their
home free from racial discrimination. (emphasis added). This instruction
further specifies that the government must prove each element beyond a
reasonable doubt. He argues, however, that Jury Instruction No. 30 permits
conviction if a defendant is motivated by race alone. To support this argument,
he points to the following passage:
The Government may satisfy its burden of proof by proving beyond a
reasonable doubt that one or more of the victims race was one of the
reasons that the defendant acted. It does not matter that the
defendant may have had more than one motive in performing the act
as long as the defendants race was one of his motives.
In other words, if you find beyond a reasonable doubt that the
defendant did the act charged . . . because of the race of the victim,
the Government has satisfied its burden . . . .
We find Mr. Maglebys argument unpersuasive. In the first paragraph of
Jury Instruction No. 30, the district court instructed the jury regarding the third
element of the 3631(a) charge:
[I]f you find that an act by the defendant was for the purpose of
intimidating or interfering with Robyn Henry because she was
associating with an African-American or with Ron Henry because he
is African-American and because either was occupying a dwelling,
then this element of the offense would be proven.
(emphasis added). Additionally, the sentence preceding the passage quoted by
Mr. Magleby helps clarify that the following language refers only to the race
-7-
-8-
175 F.3d 1208, 1215 (10th Cir. 1999). Where conflicting evidence exists, we do
not question the jurys conclusions regarding the credibility of witnesses or the
relative weight of evidence. Springfield, 196 F.3d at 1184. [W]hen a record
allows for conflicting findings, we must presume that the trier of fact resolved
any such conflicts in favor of the prosecution. Wingfield v. Massie, 122 F.3d
1329, 1333 (10th Cir. 1997) (alterations and internal quotation marks omitted).
-12-
the cross-burning. 4 Furthermore, Andy Whitlock testified that, after the crossburning, both Mr. Magleby and L.M. appeared to know that Mr. Henry is AfricanAmerican. Liz Cannon testified that, after Mr. Magleby and L.M. returned from
burning the cross in the Henrys yard, she clearly recall[ed] them indicating the
family was black and that they discussed with their friends at the party that Mr.
Henry is African-American. Tr. at 474-75. Moreover, contrary to Mr. Maglebys
assertion that he felt remorse after learning that Mr. Henry is African-American,
Ms. Cannon testified that Mr. Magleby appeared excited by what he had done and
bragged about it. We do not question the jurys conclusions regarding the
credibility of Mr. Magleby and L.M. and must presume that the jury resolved
these conflicts in favor of the prosecution. See Springfield, 196 F.3d at 1184;
Wingfield, 122 F.3d at 1333.
The jury also heard Mr. Henrys unrebutted testimony that he is the only
African-American on his block. This evidence, combined with Mr. Maglebys
The government argues that L.M.s signed statement that he told Mr.
Magleby that Mr. Henry is African-American should be considered as evidence
that Mr. Magleby targeted the Henrys because of race. That statement, however,
was admitted as a prior inconsistent statement to impeach L.M.s testimony
pursuant to Fed. R. Evid. 613. The district court properly instructed the jury that
the statement was admitted only to impeach L.M.s credibility, not for the truth of
the statement itself. Because the statement was not admitted for its truth, the jury
could not properly consider it as evidence of Mr. Maglebys intent. Our review is
limited to whether the jury reasonably could have found that Mr. Magleby
targeted the Henrys because of race. We therefore do not consider this statement
as evidence of Mr. Maglebys intent.
4
-15-
and L.M.s testimony that they targeted a specific residence, was sufficient to
permit the jury to reasonably infer that it was highly unlikely that Mr. Magleby
burned a cross at a home occupied by an African-American merely by
coincidence.
Viewing this evidence combined with the background of racial slurs,
racist jokes, racist music, and racist internet sites in the light most favorable to
the government, we conclude that a reasonable jury could find beyond a
reasonable doubt that Mr. Magleby targeted the Henrys because of their race.
Mr. Magleby also argues that the evidence was insufficient to prove that he
targeted the Henrys because they occupied their home. We disagree. Mr.
Maglebys own testimony regarding his understanding of the meaning of a
burning cross, combined with his testimony that he intentionally burned the cross
in the Henrys yard, provides sufficient evidence from which a jury could
reasonably find beyond a reasonable doubt that Mr. Magleby also targeted the
Henrys because they occupied their home. We therefore find that the district
court properly denied Mr. Maglebys motion for judgment of acquittal on this
count.
trial, Mr. Magleby did not deny igniting a cross in the Henrys yard.
Consequently, if the evidence is sufficient to sustain his conviction under 18
U.S.C. 241, it is also sufficient to sustain his 844(h)(1) conviction.
Section 241 is violated [i]f two or more persons conspire to injure,
oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment
of any right or privilege secured to him by the Constitution or laws of the United
States. Section 241 requires that a specific intent to interfere with the Federal
right . . . be proved. United States v. Guest, 383 U.S. 745, 760 (1966). Mr.
Magleby does not argue that the Henrys do not have a federally protected right to
occupy their home. Rather, Mr. Magleby contends that the evidence was
insufficient to prove beyond a reasonable doubt that he intended to oppress,
threaten, or intimidate the Henrys in their enjoyment of that right. We disagree.
The record contains substantial evidence of Mr. Maglebys intent. Mr.
Magleby testified that he decided to burn a cross to rile people up. Tr. at 921.
He acknowledged that he knew the public found cross-burning highly
objectionable. He anticipated that the cross-burning would receive the attention
of the news media. He admitted that he understood the message of racial hatred
conveyed by a burning cross. Mr. Magleby further admitted that he intended to
burn and did burn the cross in the Henrys yard. Given this evidence of Mr.
Maglebys understanding of the meaning of a burning cross to the general public
-17-
and the placement of the burning cross in the Henrys yard, we conclude that the
jury could reasonably infer that Mr. Magleby intended to oppress, threaten, and
intimidate the Henrys in the free exercise of their federal right to occupy property.
Furthermore, the district court properly instructed the jury that they could
consider the Henrys reactions when deciding whether Mr. Maglebys actions
were intended to be a threat. Robyn Henry testified that the cross-burning
terrified her. Id. at 652. She testified that she discussed with her husband
moving from their neighborhood. She testified that she was scared, confused,
anxious, [and] didnt sleep well at night. Id. at 652. She stopped sitting on their
porch because she feared for her safety. The Henrys eleven-year-old son
testified that he was scared because he didnt know if they were still going to try
to hurt [him]. Id. at 659. He testified that he started carrying a baseball bat with
him when he would walk in his neighborhood. He also testified that he started
sleeping with this baseball bat under his bed at night [i]n case somebody came in
[his] house. Id. at 653. Ron Henry testified that the significance of the crossburning to him was move, leave, youre not welcome here, . . . you were in
trouble somewhere and they wanted you to leave, leave the community. Id. at
680. He testified that he was afraid for [himself] as well as the members of [his]
family. Id. at 681. He also testified that he made several modifications to his
home to improve security and protect his family. The jury was shown
-18-
C. Evidentiary Challenges
Finally, Mr. Magleby argues that the district court erred in admitting
several pieces of evidence. We review the district courts rulings on the
admission of evidence for abuse of discretion, if an objection is timely made, and
otherwise for plain error. United States v. Mills, 194 F.3d 1108, 1113 (10th Cir.
1999).
Under the abuse of discretion standard, we will not overturn the district
courts decision unless we are firmly convinced that the district court made a
clear error of judgment or exceeded the bounds of permissible choice in the
circumstances. Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994). In
-19-
applying this standard, we defer to the trial courts judgment because of its firsthand ability to view the witness or evidence and assess credibility and probative
value. Id.
Under the plain error standard, Mr. Magleby must show (1) an error, (2)
that is plain, which means clear or obvious under current law, and (3) that
affect[s] substantial rights. United States v. Fabiano, 169 F.3d 1299, 1303
(10th Cir. 1999) (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)).
Once these requirements are met, this court may exercise discretion to correct
the error if it seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings. Fabiano, 169 F.3d at 1303 (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)).
In all of Mr. Maglebys evidentiary challenges, he argues that the district
court admitted the evidence in violation of Rule 403 of the Federal Rules of
Evidence. Rule 403 permits the district court to exclude evidence if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading of the jury. The district court has broad
discretion to determine whether prejudice inherent in otherwise relevant evidence
outweighs its probative value. United States v. Youts, 229 F.3d 1312, 1319
(10th Cir. 2000). Evidence is not unfairly prejudicial simply because it is
detrimental to a partys case. United States v. Martinez, 938 F.2d 1078, 1082
-20-
Because the threat communicated by the burning cross did not disappear once the
cross was extinguished, the Henrys reactions in the days following the crossburning are relevant to their ongoing perception of that threat. We therefore find
no plain error in the admission of the testimony regarding the Henrys reactions.
The reactions of the Henrys include the security measures taken by Mr.
Henry. The government offered eight photographs as illustrative aids to Mr.
Henrys testimony regarding the security measures he had taken. Furthermore,
the photographs are not cumulative. Evidence is cumulative if repetitive, and if
the small increment of probability it adds may not warrant the time spent in
introducing it. United States v. Davis, 40 F.3d 1069, 1076 (10th Cir. 1994)
(citations and internal quotations marks omitted). The district court reviewed the
photographs and determined that each photograph shows a different security
measure taken by Mr. Henry following the cross-burning. Because they aided the
jury in understanding Mr. Henrys relevant testimony and are not cumulative, we
find that the district court did not abuse its discretion in admitting the
photographs into evidence.
The Henrys biracial son was also a victim of the cross-burning. He lived
at the home with his parents. His reactions, like those of his parents, are
probative of Mr. Maglebys intent. His testimony that he carried and slept with a
baseball bat for protection is certainly relevant to his reaction to the cross-22-
at 829. The Eighth Circuit expressed concern that the testimony implied that the
defendant was, in fact, a skinhead and that it came close to permitting the
factfinder to conclude that the defendant was guilty by association. Id.
We share these concerns and find the admission of this testimony troubling
in a number of respects. First, the record contains no evidence that Mr. Magleby
was a member of the Ku Klux Klan. Indeed, the record is completely devoid of
any evidence indicating or suggesting that Mr. Magleby was a member or
sympathizer of the Ku Klux Klan or any other hate group. At most, the evidence
shows that Mr. Magleby harbored similar prejudicial attitudes toward AfricanAmericans. This does not provide a sufficient foundation for Dr. Gerlachs
testimony. Second, even if the governments testimony did establish an adequate
foundation for Dr. Gerlachs testimony, the admission of his testimony, like the
testimony in J.H.H., comes dangerously close to inviting the jury to find Mr.
Magleby guilty by association. Id.
Notwithstanding its concerns regarding the expert testimony, the Eighth
Circuit held that any error in its admission was harmless due to the ample
evidence of the defendants guilt. Id. at 829-30. In J.H.H., however, the Eighth
Circuit reviewed the admission of evidence in a bench trial. Id. at 829.
Consequently, the court reasoned that the prejudicial impact of inflammatory
evidence was lessened. Id. In contrast, Mr. Maglebys trial was before a jury,
-24-
know him and was not friends with him. One of Mr. Maglebys friends testified
that they had conversations about Mr. McBride in Mr. Maglebys presence, but
that they had not spoken to Mr. Magleby directly about Mr. McBride or his views
[3:495-98]. Another of Mr. Maglebys friends testified that he had once taken
Mr. McBride to a party at Mr. Maglebys where Mr. McBride could have given
racist CDs, racist literature, and information regarding a hate group to Mr.
Magleby, but that he did not know if Mr. McBride had in fact provided Mr.
Magleby with such materials. Tr. at 316-17. Mr. Magleby argues that the district
court erred in admitting this evidence because it was irrelevant and highly
prejudicial. The government argues that this evidence was relevant because it
was probative of Mr. Maglebys racial animus.
Because this testimony raises concerns similar to those raised by Dr.
Gerlachs testimony, we find its admission troubling. There is no evidence in the
record that Mr. Magleby even discussed Mr. McBrides views with him or anyone
else, let alone that he shared them. There is also no evidence that Mr. Magleby
belonged to or sympathized with the Church of the Creator, the hate group to
which Mr. McBride allegedly belonged. Moreover, there was no evidence that
Mr. McBride attended Mr. Maglebys party on the night that Mr. Magleby burned
the cross. It is difficult to see how the admitted testimony regarding Mr. McBride
had any relevance to Mr. Maglebys intent on the evening he burned the cross.
-27-
4. Song Lyrics
Mr. Magleby also argues that the district court erred in admitting song
lyrics from racist CDs. He argues that there was no foundation for the song lyrics
read during Mr. Maglebys testimony and that their probative value, if any, is
substantially outweighed by their prejudicial effect. Because Mr. Magleby
objected at trial to their admission, we review for abuse of discretion. Mills, 194
F.3d at 1113.
During its cross-examination of Mr. Magleby, the government was
-28-
permitted to read into evidence the lyrics from a song entitled When the Boat
Comes In by the band Screwdriver. The message of the passage read into
evidence is that the nation has been taken over by African-Americans, that it
should be taken back, and that African-Americans should leave the country. The
chorus to this song is Nigger, nigger, get on that boat. Nigger, nigger, row.
Nigger, nigger, get out of here. Nigger, nigger go, go, go. Tr. at 959.
We first address Mr. Maglebys argument that there was no foundation for
the admission of the song lyrics. Mr. Maglebys friend Andy Whitlock testified
that he heard Mr. Magleby play a CD by Screwdriver on a number of occasions.
He testified that the message of one of Screwdrivers songs played by Mr.
Magleby was [j]ust get out, leave the country and that it contained the word
nigger. Id. 394-95. Another of Mr. Maglebys friends, Justin Merriam,
testified that, on the night of the cross-burning, Mr. Magleby was playing a CD by
Screwdriver with lyrics nigger get on your boat, nigger go. Id. at 331. Liz
Cannon, who accompanied Mr. Merriam to Mr. Maglebys party on the evening of
the cross-burning, testified that Mr. Magleby played a CD with lyrics like nigga,
nigga. Id. at 468. She also testified that Mr. Magleby knew and sang along with
the lyrics to the racist CDs: [Mr. Magleby] knew the lyrics on the CDs. . . . as
good as you can know them, he knew the lyrics. He could sing them word-forword. Id. at 468-69. All of this testimony preceded the introduction of the
-29-
the district court did not abuse its discretion in admitting the song lyrics into
evidence.
doubt. We find, therefore, that the admission of this testimony was not plain
error.
III. Conclusion
We find that neither challenged jury instruction constituted plain error. We
also find that the government presented sufficient evidence to permit the jury to
find beyond a reasonable doubt that Mr. Magleby violated 42 U.S.C. 3631(a),
18 U.S.C. 241, and 18 U.S.C. 844(h)(1). Furthermore, we find that the district
court did not commit reversible error in admitting any of the evidence challenged
by Mr. Magleby.
Accordingly, we AFFIRM.
-33-